Woodhurst and Rubbens - [2016] FamCA 730

FAMILY COURT OF AUSTRALIA

WOODHURST & RUBBENS

[2016] FamCA 730

FAMILY LAW – SPOUSAL MAINTENANCE – Where the wife’s financial need was not disputed – Question of the husband’ capacity to pay spousal maintenance – Where the wife proposes the husband could draw money from a company of which he is a shareholder – Where the husband proposes the parties live off existing income and their capital – Where the wife’s proposal could affect compliance with Division 7A of the Income Tax Assessment Act 1936 (Cth) – Where the husband has a significant amount of money held in trust of which he is the sole legal owner – Where the release of funds from the trust account – Ordered that the husband pay spousal maintenance of $500 per week – Ordered that $100,000 is released to each party from funds held on trust – Ordered that an injunction is imposed precluding further withdrawals from the trust account

Family Law Act 1975 (Cth), Pt VIII
Income Tax Assessment Act 1936 (Cth), Div 7A

APPLICANT:

Ms Woodhurst

RESPONDENT:

Mr Rubbens

FILE NUMBER:

SYC

471

2016

DATE DELIVERED:

11 August 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Austin J

HEARING DATE:

11 August 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Othen

SOLICITOR FOR THE APPLICANT:

Rebekah Dorter Family Law

COUNSEL FOR THE RESPONDENT:

Mr Campton SC

SOLICITOR FOR THE RESPONDENT:

Mills Oakley Lawyers

Orders

Pending further order, the husband shall pay to the wife spousal maintenance of $500 a week on the following conditions:

(a)The first payment is due and payable within seven days hereof;
(b)Payments are to be made by direct deposit into the wife’s banking account held with the ANZ Bank, being BSB No … Account No ...

The parties shall forthwith do all acts and things necessary to authorise and instruct the wife’s solicitors to pay from the funds held by them on trust for the parties, by way of interim property settlement and/or spousal maintenance:

(a) The sum of $100,000 to the wife; and
(b) The sum of $100,000 to the husband.

Subject to compliance with Order 2, pending further order or unless otherwise agreed in writing between the parties, the parties are restrained from withdrawing any more of the funds held on trust for them by the wife’s solicitors.

Otherwise:

(a)The application in a case filed on 23 May 2016 is dismissed.
(b)The further amended response to an application in a case dated 9 August 2016 is dismissed.
(c)Any and all other outstanding applications for interim orders are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Woodhurst & Rubbens has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Woodhurst and Rubbens

Details

AGLC: Woodhurst and Rubbens [2016] FamCA 730
Case: [2016] FamCA 730
Decision Date: 11 August 2016

CaseChat Overview and Summary

In the matter of *Woodhurst and Rubbens*, Austin J of the Supreme Court of New South Wales considered an application for interim spousal maintenance and property settlement. The dispute arose in the context of family law proceedings between the husband and wife.

The court was required to determine the appropriate interim orders for spousal maintenance and the distribution of funds held by the wife's solicitors on trust for the parties. This included whether to grant spousal maintenance and how to allocate the funds pending a final resolution of the property settlement.

Austin J ordered the husband to pay the wife spousal maintenance of $500 per week, with the first payment due within seven days. Furthermore, the court directed that the parties, pending further order or agreement, were to authorise the wife's solicitors to release $100,000 to the wife and $100,000 to the husband from the trust funds. The parties were also restrained from withdrawing further funds from the trust account, subject to compliance with the order for interim property settlement and spousal maintenance. All other outstanding applications for interim orders were dismissed.

Orders

Orders of the court

Pending further order, the husband shall pay to the wife spousal maintenance of $500 a week on the following conditions:

(a) The first payment is due and payable within seven days hereof;

(b) Payments are to be made by direct deposit into the wife’s banking account held with the ANZ Bank, being BSB No … Account No ...

The parties shall forthwith do all acts and things necessary to authorise and instruct the wife’s solicitors to pay from the funds held by them on trust for the parties, by way of interim property settlement and/or spousal maintenance:

(a) The sum of $100,000 to the wife; and

(b) The sum of $100,000 to the husband.

Subject to compliance with Order 2, pending further order or unless otherwise agreed in writing between the parties, the parties are restrained from withdrawing any more of the funds held on trust for them by the wife’s solicitors.

Otherwise:

(a) The application in a case filed on 23 May 2016 is dismissed.

(b) The further amended response to an application in a case dated 9 August 2016 is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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